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SB-435 Civil law: personal rights: online sex trafficking: sexual photographs.(2021-2022)

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Date Published: 02/16/2021 09:00 PM
SB435:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 435


Introduced by Senator Cortese

February 16, 2021


An act to add Section 52.8 to the Civil Code, relating to civil law.


LEGISLATIVE COUNSEL'S DIGEST


SB 435, as introduced, Cortese. Civil law: personal rights: online sex trafficking: sexual photographs.
Existing law grants a cause of action to a depicted individual, as defined, against a person who either (1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure or (2) intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation. Existing law also specifies that a victim of human trafficking may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.
This bill would allow a person to bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, specified statutory damages, and any other appropriate relief, against any person or entity that makes, obtains, or distributes, including through electronic distribution, actionable material. The bill would make this prohibition applicable to any person or entity that, with notice of claimed infringement, uploads or reuploads actionable material, or that in any manner publishes or republishes actionable material.
This bill would define actionable material as any moving or still photograph in any technological form, regardless of whether it has been altered, of a person or their identifiable likeness, in which they are naked or that is sexual in nature, and that meets specified requirements.
This bill would authorize, in addition to any other damages awarded to a prevailing plaintiff, statutory damages of $100,000 to be assessed and paid by the defendant for every 2 hours of electronic distribution after notice of claimed infringement of these provisions was received by the defendant. If the plaintiff was under 18 years of age when the actionable material was created, the bill would provide that the additional statutory damages awarded would instead be $200,000 for every 2 hours of electronic distribution after notice of claimed infringement of these provisions was received by the defendant.
This bill would require a person or entity that operates an online service or internet website, including electronic distribution, that is available in California to list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of these provisions, and would make failure to do so an actionable violation of these provisions.
This bill, in addition to the private right of action, would require the Attorney General to enforce these provisions against repeated violators, including, among other actions, by levying fines commensurate with the statutory damages described above payable to the person in the actionable material.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 52.8 is added to the Civil Code, to read:

52.8.
 (a) (1) A person may bring a civil action for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, and any other appropriate relief, including statutory damages, against any person or entity that engages in online sex trafficking by making, obtaining, or distributing, including through electronic distribution, actionable material. A prevailing plaintiff shall also be awarded attorney’s fees and costs.
(2) For purposes of this section:
(A) “Actionable material” means any moving or still photograph in any technological form, regardless of whether it has been altered, of a person, or their identifiable likeness, in which they are naked or that is sexual in nature, for which either of the following is true:
(i) It was coerced, made, or obtained by trickery or subterfuge, or stolen, made, obtained, or distributed without the knowledge or without or beyond the express permission, freely given, of the person in the photograph, or the person whose identifiable likeness appears in the photograph.
(ii) It is of a person who was less than 18 years of age at the time it was created.
(B) “Electronic distribution” means any transmission or sharing by electronic means including, but not limited to, transmission, posting for public view, or sharing via an internet website, platform, application, peer-to-peer file sharing, or other online mechanism.
(b) A parent or guardian may bring a civil action pursuant to this section on behalf of a minor or ward in the actionable material.
(c) Upon receipt of notice from the person in the actionable material, all persons or entities in possession or control of actionable material that contains a person who at the time the material was created was less than 18 years of age, shall immediately remove the material or disable its distribution, and all copies shall be destroyed or returned to the person in the actionable material, without regard to any permission previously given by anyone for its creation or distribution.
(d) An action brought pursuant to this section shall be commenced within six years of discovery of infringement, or within 10 years of the person in the actionable material having reached 18 years of age, whichever is longer.
(e) (1) In addition to any other damages awarded, statutory damages in the amount of one hundred thousand dollars ($100,000) shall be awarded to the prevailing plaintiff to be paid by the defendant for every two hours of electronic distribution after notice of claimed infringement of this section was received by the defendant.
(2) Notwithstanding paragraph (1), if the plaintiff was under 18 years of age when the actionable material was created, the statutory damages to be paid to the prevailing plaintiff, in addition to any other damages awarded, shall be two hundred thousand dollars ($200,000) for every two hours of electronic distribution after notice of claimed infringement of this section was received by the defendant.
(3) If actionable material about which the defendant received notice is removed from electronic distribution, or access to them is disabled, within two hours of having received notice of claimed infringement under this section, no civil liability or statutory damages under this section shall be available.
(4) The amount of the statutory damages awarded to a plaintiff pursuant to paragraph (1) or (2) shall be adjusted commencing on January 1, 2027, and every five years thereafter, to reflect any increase in the cost of living in California, as indicated by the annual average of the California Consumer Price Index.
(f) A person or entity that operates an online service or internet website, including electronic distribution, that is available in California shall list, in a location available to the public via the service or on the internet website, an agent for notification of claimed violation of this section. Notification of claimed violation with this agent shall constitute notice for purposes of this section. Failure of a person or entity that operates an online service or internet website to comply with this subdivision constitutes an actionable violation of this section.
(g) This section applies equally to any person or entity that, with notice of claimed infringement, uploads or reuploads actionable material, or that in any manner publishes or republishes actionable material.
(h) A civil injunction shall be available to block or interrupt the distribution, including electronic distribution, of actionable material.
(i) In addition to the personal right of action set forth in subdivision (a), the Attorney General shall commence an action to enforce this section against any person or entity that engages in repeated violations, and shall, among other actions, levy fines commensurate with the statutory damages provided in subdivision (e), payable to the person in the actionable material.